Published on 21 March 2022
SECOND SECTION
Application no. 58901/19
Naci KURKUT against Turkey
and 6 other applications
(see list appended)
communicated on 3 March 2022
SUBJECT MATTER OF THE CASE
The applications concern the refusal of the authorities to appoint the applicants, who fulfilled all the formal conditions, to public service on account of a negative security clearance. All applicants complain of an infringement with their right to a fair trial on account of the alleged failure of the administrative courts to carry out an effective judicial review. As the information and the accusations contained in the security clearance documents were not disclosed to them, they argue that they were unable to contest their veracity in the course of the administrative proceedings and that the court decisions did not contain relevant and sufficient legal reasons.
The applicants in application nos. 58901/19, 14944/20, 29101/20, 28956/21 further complain of the arbitrary nature of negative security clearances in so far as the conclusions therein were based on the alleged connections or activities of their close relatives with a terrorist organisation and contained no objective assessment in respect of themselves.
The applicant in application no. 29101/20 further complains under Articles 6 § 2 and 7 of the Convention that the administrative courts failed to observe respect for his right to presumption of innocence because they casted doubt on his established innocence by stating that he had been previously acquitted of a terror-related offence solely on account of lack of evidence.
The applicants finally point out that despite the law on security clearance was struck down as unconstitutional by the Constitutional Court in its decision of 29 July 2019 for not fulfilling, inter alia, the requirement of foreseeability in abstractive review proceedings, the same court did not examine their individual appeals on the merits.
QUESTIONS TO THE PARTIES
COMMON QUESTION
In the light of the principles established in Pişkin v. Turkey (no. 33399/18, §§ 120-153, 15 December 2020), did the domestic courts carry out an effective judicial review of the refusal to appoint the applicants to civil service in accordance with Article 6 § 1 of the Convention? In particular, were the principle of equality of arms; the right to an adversarial hearing; and the right to a reasoned judgment respected in the impugned proceedings?
CASE SPECIFIC QUESTION IN RESPECT OF APPLICATIONS NOS 58901/19, 14944/20, 29101/20 and 28956/21
Can the conclusions contained in the security clearance and the relevant judicial decisions endorsing them be regarded as arbitrary or manifestly unreasonable?
CASE SPECIFIC QUESTIONS IN RESPECT OF APPLICATION NO. 29101/20
Has the applicant exhausted all domestic remedies in respect of his Article 6 §2 complaint? In particular, did he raise that complaint in substance before the Constitutional Court?
Has there been a violation of that provision on account of the reasoning and wording of the administrative court decision in the applicant’s case (see, among others, Vassilios Stavropoulos v. Greece, no. 35522/04, §§ 38-40, 27 September 2007)
APPENDIX
No.
Application no.
Case name
Lodged on
Applicant
Year of Birth
Place of Residence
Nationality
Represented by
1.
58901/19
Kurkut v. Turkey
30/10/2019
Naci Kurkut
1985
Diyarbakır
Turkish
Sedat İleşmek
2.
59988/19
Kesgin v. Turkey
06/11/2019
Şükran Kesgin
1990
Van
Turkish
Emine
Kesgin
3.
14944/20
Doğan Özdemir v. Turkey
17/03/2020
Zeycan Doğan Özdemir
1986
Lorient
Turkish
Mehmet Kısayol
4.
23565/20
Dolgun Kılıç v. Turkey
03/06/2020
Bahar Dolgun Kılıç
1989
Manisa
Turkish
5.
29101/20
Tetik v. Turkey
29/06/2020
Agit Tetik
1992
Şırnak
Turkish
Rezdar Çoban
6.
42116/20
Tekin v. Turkey
07/09/2020
Baran Tekin
1991
Manisa
Turkish
Nergiz Tuba Aslan
7.
28956/21
Tanrıkulu v. Turkey
20/05/2021
Mehmet Tanrıkulu
1987
Diyarbakır
Turkish
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